August 12, 2005
Siva is quick to point to fair use cases counting against Google -
that’s odd, considering that in many contexts he would readily
criticize bad strands of copyright caselaw. Google Print is
making intermediate copies of the entire works in order to display a
few pages from those books. With respect to books under
copyright, the entire book is not displayed. Is Siva saying that
any intermediate copying of an entire work by a corporation is
unfair? What would that mean for reverse engineering? It’d
be an admittedly tough case for Google to win, but I’m not so sure that
Google actually is dead in the water under caselaw. If it is, I
don’t think it ought to be.
Regardless, the caselaw doesn’t amount to what Siva implies it does. Though it’s only a
brief citation, it seems Siva seriously misreads American Geophysical Union v.
Texaco. The court didn’t rule against Texaco because it was a
corporation. In fact, the appeals court specifically disagreed with the
district court’s “undue emphasis” on the for-profit nature of Texaco.
In the end, Texaco’s copying of research papers for achival was found
unfair under the first factor, for reasons closely connected to the
fourth factor (market impact). And, on that point, I’m not sure
what Siva’s applauding. This case followed a broad reading of the
works’ potential market so that it includes any
“traditional, reasonable, or likely developed markets.” That does
not comport with Sony‘s
more constrained reading of this factor – it certainly seems
“reasonable” that the television program copyright holders could and
would develop a market that time-shifting undermines. The court
also suggested that if the copyright holder is offering licenses for a
use, then that’s a developed market. This is one
case in the dangerous, gradual expansion of this factor – see Mp3.com and Napster.
In American Geophysical Union, the court did note that the first factor (and thus the fourth, at least under Sony)
was more likely to be considered
fair under the first factor where it “produces a value that benefits
the broader public interest.” Reverse engineering would fit that
category; Texaco’s didn’t. It seems that it is here that Siva
seriously takes issue with Google.
We can put aside caselaw and go to straight-up normative analysis -
Siva thinks that this Google Print is bad, bad, bad. What I see is gross
hyperbole. What Google’s doing is nothing like widespread
infringing file-sharing on P2P. Sure, they’re copying the entire
book, but they’re only providing small selections. I don’t see
how that amounts to a “copyright meltdown.” (I know that you can try to
do different searches to over time accumulate the whole book, but
Google does enough to frustrate that, I think.)
Libraries good, corporations bad doesn’t ring true for me.
Without a doubt, I’m glad that people are becoming more skeptical of
Google, despite their “we’re not evil” mantra. However, in this
case, Google was providing an important public service, one that
happened to benefit the company commercially, but one that also did not
pose a serious threat to copyright holders (in fact, it probably would
help them), and for those reasons I think Google Print should be lawful.
Jason put it: “This is a clear example of copyright failing the public in the digital
age. Google isn’t selling the books; they just need to scan them to
help Internet users find what they’re looking for. The fact that
publishers are able to hold up this process works against consumers and
the marketplace, not in their favor.”